Former Census Directors say Trump’s memo on apportionment is unprecedented and illegal

Democrats and Republicans clashed on the merits and legality of Trump’s memo on removing undocumented immigrants from apportionment during an emergency hearing at House Oversight Committee’s hearing on Wednesday.

On July 21, President Trump issued a memo that directed the census to use information from other federal agencies to determine how many undocumented immigrants are currently in the U.S., and to not include undocumented immigrants in the population counts used to determine how many represenatives each state gets in the House.

In response to the executive order, the House Committee on Oversight and Administration held an emergency hearing to review and discuss the memo. During the hearing, House Democrats denounced the memo as illegal and an attempt by Trump to politically hurt cities and states with large undocumented immigrant populations, and that often elect Democrats, by potentially depriving them of represenatation and funding.

Chairwoman Carolyn Maloney said, “The president’s direction is unconstitutional. It is illegal. It disregards the precedent set by every other President.” When she questioned the four former directors of the Census Bureau that were called to testify, the former directors all said that the census has always counted and included noncitizen residents, including undocumented immigrants, in the census and apportionment.

House Republicans defended the memo by saying that non-citizens cannot vote so they should not be included in the apportionment count, and that including undocumented immigrants incentives states and munipalities to harbor undocumented immigrants. Republicans also criticized Democrats for focusing on the memo instead performing oversight on the census. Ranking member of the committee, James Comer said, “Covid-19 has created a lot of operational challenges for the census. Unfortunately, this committee has conducted no oversight of these impacts. Once again Democrats are focusing their efforts on political issues, not the basic, good government oversight this committee is charged with conducting.”

Former Director of the Census Bureau, Kenneth Prewitt, said that he thought the Census Bureau would be unable to determine how many undocumented immigrants are in the U.S., saying, “You have a really difficult situation to uncount them (undocumented immigrants).” Prewitt continued, “The census bureau does not know how to do what the president is asking them to do, and it’s going to hurt the census, and therefore we’re at risk of not having a census in 2020.”

The current Director of the Census Bureau, Steven Dillingham, would not comment on the legality of the memo. Dillingham did emphasize that the census still intends to count everyone, and he said experts at the bureau will examine methodologies to determine the number of undocumented immigrants in the U.S., but this has not affected the operations of the Bureau. Almost 63 percent of households have responded and Dillingham said he was happy with the progress that was made.

Prewitt said that he thought the census would have to be delayed due to the complications because the coronavirus increases the difficulty of counting people who have no self reported. “We are not in control, Prewitt said. “COVID is in control of whether we will be able to do this count successfully before the end of the year.” Prewitt said that an independent body should be set up to impartially analyze how accurate the census is, such as by comparing recent estimates of U.S. population figures published in the American Community Survey to the census.

Additionally, former Director John Thompson said the recent actions taken by Trump undermine the faith that undocumented immigrants have in the census, as they may worry that the data they provide could be shared with law enforcement or immigration enforcement. Thompson said, “I believe that the memorandum has a high potential to reduce the likelihood of census participants for hard to count populations such as citizens and immigrants… The end result will most likely be increased non participation and increased undercounts of these populations.”